Human rights refer to the natural or basic rights and freedoms to which all people are entitled to. Traditionally, the rights and freedoms of citizens were protected by an Act of Parliament or by the judges in developing the common law. Prior to World War II, the convention for the protection of human right and freedom was drafted in 1950s by the Council of Europe. It was drafted because of disgust with fascism and an anxiety to protect basic freedom. On 1953, it has developed to become an international treaty, which all 47 countries of the continent of Europe are bound by the European Convention of Human Rights and Fundamental Freedoms 1950, also known as ECHR. United Kingdom (UK) was one of the first countries to sign the Convention in November 1950. Although it entered into force in the UK on 3rd Sept 1953, UK chose not to incorporate its terms into domestic law. Therefore UK was only bound to ECHR on the matter of international law and not within the domestic legal system. During 1960s, there are few parties concerned had campaigned for the enactment for Human Rights Act in UK. These parties are the commentators and public interest groups. However, due to several criticisms and the reluctant of UK government to pass such legislation, the HRA did not enact until 1998. Though the convention did not incorporate into domestic law, UK did recognize the authority of European Court of Human Rights (ECtHR) to hear and adjudicate complaints from UK citizens. In 1997, the newly elected Labour Government promised to introduce a human right bill to Parliament. As a result, The Human Right Act 1998 received Royal Assent on 9 November 1998 and came into full effect in the UK on 2nd Oct 2000. For the past 20 years or so, UK governments have lost more than 40 cases at ECtHR and have violated 11 of the 15 rights set out in Human Rights Act 1998. This records show that there are several areas in UK which are incomplete as some of them does not provide adequate human rights. This was laid down in several cases which concerned with the significance of Article 6, 8 and 10. Article 6(1) concerns the rights to fair trial. This is to ensure that everyone has a fair trial under civil and criminal trial. There are few notable cases under this article, whereby the court held that there was a breach of Article 6 and passing a new law to amend it. This was shown In Golder v United Kingdom (1975) and Tuna Begum v Tower Hamlets (2003). However, in some cases, ultimately, it is the judges that determine whether this country’s laws are compliant with the ECHR as seen in R v Horncastle and Others (2009). This was, once, claimed by AV Dicey’s in the rule of law that our constitutional rights are given by the courts as a result of cases brought before them. Therefore, it is the court that decides which rights are we entitled to, the European Convention of Human Rights merely enhance the law. Article 8 provides that everyone has the right to respect his private and family life, his home and correspondence. Article 8 may be subject to limitation which is necessary for democratic society. This is an entirely new law in UK as previously the UK government did not provide any protection of privacy to the citizens as shown in Malone v UK (1984). Since the incorporation of Rights in domestic law, the Article 8 has provided a better protection of their privacy under ECHR. This can be seen in the case of Ghaidan v Mendoza (2004) and B v UK (2004) where it concerned with homosexual. To add more, in 2002, the European Court of Human Rights found that UK had breached Art.8 and Art.14 by unjustly dismissed several soldiers because of their sexuality as shown in the case of Lustig- Prean v UK (2000). Therefore, it can be argued that Article 8, now given statutory recognition by Human Rights Act 1998, has increased protection for privacy and family life. Article 10 covers the right to hold opinions and to receive and express information and ideas. Although Article 10...
Discuss whether the HumanRights succeeded in doing what it was designed to do
Prior to HumanRight Act 1998, European Convention HumanRights were not directly applied by the courts and while there were infringements of the rights enshrined in the ECHR an application have to make to the Strasbourg Court when domestic avenues had been exhausted. Therefore, HumanRight Act 1998 was incorporated in UK in 2000 to bring ECHR rights to the English law and to ensure that the public authorities have due regard for Humanrights. Undeniable, it has a substantial impact in UK as according to Jack straw “these are new rights for new millennium. The HumanRight Act is the most important piece of constitutional legislation the UK has ever seen.”
However, we must also recognise that as a consequence of the incorporation of ECHR in English law, it had also led to some political tension between the Legislative and the Judiciary. Judges often being criticised that go beyond their constitutional role as a “interpreter” and hence violate the principle of parliamentary supremacy and Separation of power.
This is because the ultimate purpose of HRA was designed to give judges a mandate to ensure that legislative and executive decision making is compatible with ECHR and at...
...The HumanRight Act 1998 is an act of Parliament of the United Kingdom which received Royal Assent on 9 November 1998, and mostly came into force on 2 October 2000.It’s aim is to “give further effect” in UK law to the right contained in the European Convention on HumanRight. The Act makes available in UK courts a remedy for breach of a Convention right, without the need to go to the European Court ofHumanRight in Strasbourg. It also totally abolished the death penalty in UK law although this was not required by the Convention in force for the UK at that time.
In particular, the Act makes it unlawful for any public body to act in a way which is incompatible with the Convention, unless the wording of an Act of Parliament means they have no other choice. It also requires UK judges to take account of decisions of the Strasbourg. Court and to interpet legislatron,as far as possible, in a way which is compatible with the convention.However,if it is not possible to interpret an Act of Parliament so as to make it compatible with the Convention, the judges are not allowed to override it. All they can do is issue a dedaration of incompatibility. This declaration does not effect the validity of the Act of parliament, in the way, the HumanRight Act seeks to maintain the principle of Parliamentary sovereignty.
The convention was drafted...
...University of London
Common Law Reasoning and Institutions
Essay Title: ‘Although the HumanRights Act 1998 has impacted on the judicial understanding of precedent, the underlying features of the doctrine remain unchanged.’
Student Number: 090485789
Candidate Number: 54206
The HumanRights Act 1998 came into force for almost twelve years and it was drafted in response to years of debate about whether the United Kingdom should introduce a bill of rights and if so, what kind. The Act protects humanrights and civil liberties in the UK; therefore, the Act has brought rights home. However, it is necessary to consider whether its legal form serves the purpose for which the Act was enacted i.e. to create more efficient humanrights culture. Therefore, to assess the impact of the HumanRights Act 1998 on Doctrine of Binding Precedent a number of question must be addressed such as the status of the decisions of the European Court of HumanRights (ECtHR), whether the new Act has remedied the deficiencies in the traditional English Legal System and created identifiable right based culture in UK and whether the Act significantly widened the power of the judges in the judicial law- making.
...Convention on HumanRights (ECHR) through the HumanRights Act 1998 had no influence on English Law, as the concept of rights has always been part of English Law’ it is necessary to examine English Law prior to the incorporation and then examine both the European Convention on HumanRights (ECHR) and then its incorporation by HumanRights Act 1998 (the Act). First, though, it is necessary to examine the meaning and concept of humanrights.
In examining humanrights, it is necessary to focus upon legal rights as opposed to moral rights. Legal rights are artificial, created by governments; they are particular in that they apply to those in a particular society living under a particular system; thus they are not universal; and they are alienable, in that they can be given up or modified. It is important to note that ‘rights’ are not the same as ‘needs’ or ‘desire.’ (Heather Montgomery, 2012, pp9-10,14,15). As Scruton declared ‘rights are not secured by declaring them.’ He further added that rights can be defined as freedoms. (Scruton, R. 2004 pp 18-19). Historically, humanrights are complex especially where they tend to be unwritten and in the UK it has been assumed that we are free...
...University of London
Common Law Reasoning and Institutions
“The HumanRights Act has revolutionised the way in which judges interpret statutes.”
The statute is a piece of legislature that is set out by Parliament to legislate the laws of United Kingdom to be used by the courts in legal proceedings. Though written by the Parliament, the duty to interpret and apply the statutes fall on the courts, more specifically the judges to enact the statute and interpret it to suit the proceedings. Thus in other words, the duty to interpret statutes fall within the responsibilities of the judge. To help with the interpretation of statutes, the Parliament has passed the Interpretation Act 1978, but it is of not much use as it only provides standard definitions of common provisions and not notes for interpretation. Thus, the judges have took up the responsibility to create rules of interpretation, which are not really rules but are different approach to interpret statutes which are created by Parliament. For example, the literal rule is used to interpret a statute to its literal meaning which is stated. Then we have the golden rule, which is used to interpret the statute, if meaning is construed through the literal meaning, to alter the meaning to not be absurd, as the will of Parliament. The third rule is the mischief rule, as laid down in Heydon's Case  EWHC...
...HumanRights Act 1998 has impacted on the judicial understanding of precedent
Humanrights are inalienable rights in which people are conferred with by birth. The state being the guardian of such rights have an absolute obligation to protect the humanrights. Prior to the HumanRights Act 1998, a Uk citizen who had a grievance of a violation of ahumanright, had to complain to the Euoropean Court of Humanrights in order to obtain redress. Comparatively, it can be said that by the enactment of the HumanRights Act, the rights which were protected under the European Convention of Humanrights(ECHR) were brought home, thus better protecting the humanrights within the sphere of the United Kingdom.
The HumanRights Act 1998 (the Act) came into full force on 2 October 2000. The aim of the Act is to ensure that a set of basic humanrights, which are listed in the Act, are fully respected and enforced in the UK. Once the HRA became law UK citizens had, for the first time, rights instead of liberties. The Act fundamentally changes the way the UK system of justice works, and makes public authorities more accountable...
...replacing the HumanRights Act 1998 with a British Bill
of Rights and Responsibilities.
The HumanRights Act 1998 (HRA 1998) is the single most effective piece of legislation, passed in the United Kingdom, which enforced the principles set out in European Convention on HumanRights in British domestic courts. A brief history as to the enactment of such a profound piece of legislation will help us understand the importance of the HumanRights Act 1998, and reasons the current coalition government would consider replacing the HumanRights Act 1998 with a British Bill of Rights and Responsibilities.
After World War 2, and the barbaric atrocities of the Nazi holocaust, European politicians and jurist were convinced that there was a need to forge a new Europe. The foundation of the Council of Europe was inspired by the need to guard against dictatorship, avoid risk of another war and to provide a beacon of hope. The first task was to establish rights for individuals against sovereign states. The code of the European Convention of HumanRights (ECHR) was formed, and the European Court on HumanRights (ECtHR) was established and located in Strasbourg.
This treaty was signed by member states. However, British nationals who wanted to...
...Statutory interpretation and humanrights
Statutory interpretation and human rights1
Rt. Hon. Lady Justice Arden, DBE2
Introduction I am greatly privileged to be asked to give this address to such a distinguished gathering of legislative counsel from around the world. I have been asked to speak about humanrights and I will treat my title as extending to constitutional rights. I will concentrate my remarks on the statutory interpretation of human or constitutional rights. I do not simply mean the interpretation of statutes which legislate for humanrights. I also mean those situations where it is said that a statute dealing with some other subject-matter violates a constitutional or humanright. For a judge to address this subject in this forum might be said to be like looking down the wrong end of a microscope and seeing the clinician or microbiologist or whomever is using the telescope. But that metaphor must not be taken too far. Specimens seen under a microscope are usually put on a slide and extracted from all other matter. In statutory interpretation words have to be examined in their context. To find the meaning of even such simple words as “the cat sat on the mat” requires some basic common understanding of the laws of gravity. The determination of a question of statutory interpretation is in...